Bhawarjit Chetri vs Kedarmal Banarasilal

Sarjoo Prosad, C.J.—This appeal has been preferred by the defendant to the action. The suit was for recovery of money due on adjustment of accounts which was acknowledged in the books of the Plaintiff by the Defendant. The Plaintiff Banarashilal Agar-walla is said to carry on business in the name and style of Kedarmal Banarashilal, of which Banarashilal himself and his sons are the proprietors. It is a joint family business, and not a business constituted under the terms of the Partnership Act. The Defendants are Joarji Pabudan Chetri and Bhawarji Chetri. They are also described as carrying on business in the name and style of Joarji Pabudan and Bhawarji Chetri, having been described as the managing proprietor of the business. The Defendants had transaction with the Plaintiff for about the last 25 years and on 11-6-44 the Defendant Bhawarji Chetri, on adjustment of accounts, acknowledged in Plaintiff�s ''khata'' the liability for payment of Rs. 2843/4/-. The stipulation further was to pay in instalments, but as nothing was paid, the Plaintiff was compelled to institute the suit.

The Defendant Bhawarji Chetri contested the suit. His defence was that the Defendant was not the proprietor of the firm Joarji Babudan nor was it a joint family concern, but that Pabudan Rajput was the sole proprietor of the firm. This Defendant disclaimed all interest in the business and stated that he was a mere employee and on the death of the sole proprietor, Pabudan Rajput, the Plaintiff, called this Defendant and succeeded in getting an acknowledgment from him under threat and coercion.

The two Courts below have concurrently held that the Plaintiff was the son of the late Kedarmal and that he was the sole proprietor of the firm Kedarmal Banarasilal. The Courts below also found from the description of the Plaintiff firm as given in the cause title and in the body of the plaint, that it was apparent that the Plaintiff Banarasilal had instituted the suit as Karta of the joint Hindu family consisting of himself and his two minor sons. There was, therefore, no defect in the frame of the suit so far as the Plaintiff was concerned. In regard to the Defendant, it was found that he had not only a share in the business of the firm Joarji Pabudan but that he also had dealings with the Plaintiff in that name. The contention of the Defendant that he was a mere employee of the firm was held to be a mere pretence. The Courts below also rejected the plea that the acknowledgment in question had been made by the Defendant under any coercion or threat, and the allegation of the Defendant on the point was found to be completely baseless. The trial Court, however, granted a decree against both the Defendants Pabudan Chetri and Bhawarji Chetri. The Appellate Court modified the decree to the extent that it set aside the decree in respect of Defendant Pabudan Chetri, but granted a decree to the Plaintiff as against the firm Joarji Pabudan and the Defendant-Appellant Bhawarji Chetri as the managing proprietor thereof to the extent of the amount claimed by the Plaintiff. The Defendant has appealed against that decree.

The first contention of Mr. Sen is that the suit is not properly framed, in that the Plaintiff Banarasilal Agarwall did not describe himself as the Karta or managing member of his joint family, and the suit, as such, was not maintainable. In the first place, if it is actually held that the Plaintiff Banarasilal was the head member or Karta of the joint family consisting of himself and his minor sons, then the suit cannot fail merely because of the absence of any such description in the cause title. It is obvious on the findings in this case that the joint family consisted of the Plaintiff and his minor sons. In the plaint also he has described himself as such and he definitely alleges that he and his sons are the proprietors of the firm which carries on the business. The firm is merely a joint family firm and is not a firm constituted under the Partnership Act. Therefore, there is no defect in the frame of the suit and the Courts below have rightly held that the suit, as framed, is maintainable. They have even found, and in my opinion, rightly, that having regard to the recitals in the plaint, as also the description in the cause title, the Plaintiff had given sufficient indication that he was suing as the Karta of the joint family.

The other point urged by the learned counsel, however, is more substantial. The suit has been dismissed by the lower Appellate Court as against the other Defendant Pabudan Chetri who was supposed to be a partner of the business along with this Defendant. As I have already pointed out, this business is not a registered firm or business constituted under the Partnership Act. It cannot, therefore, be treated as a legal entity as such. In these circumstances, it was essential that all the partners of the business should have been joined as party Defendants to the action before it could be held that the so called partnership or the assets, if any, of such partnership, would be liable, and before it could be found that this Defendant Appellant was the managing proprietor of such a partnership. The decree, therefore, granted in favour of the Plaintiff as against such a partnership, which does not exist in the eye of law, is clearly illegal. It will have to be confined only as against the Defendant Appellant, and not as against any firm called Joarji Pabudan which has no existence in the eye of law. To this extent alone the decree of the lower Appellate Court is modified.

The appeal is otherwise without any merit and must be dismissed, with cost.

Deka, J.

I agree.